Marx v. State

Jeffrey MARX, Appellant, Steven

The STATE of Texas.

No. 994-97. Texas, Appeals of Criminal

En Banc.

Feb. Webb, Byrd Burnet,

Christine appel- for lant. Minton, Morgan Atty.,

John Asst. Dist. Paul, Austin, Atty., Matthew State’s for State.

OPINION MANSFIELD, J., opinion delivered the Court, McCORMICK, P.J., in which MEYERS, PRICE, KEASLER, JJ„ joined. appellant’s

At aggravated trial for sexual child, assault two child witnesses testi- television, two-way fied via closed circuit out- appellant’s side physical presence and over objection. granted his appellant’s We peti- tion discretionary review to determine whether the admission the child witnesses’ rights violated his under the Sixth and Fourteenth Amendments to the United States Constitution and Article 38.071 of the Texas Code Criminal Procedure. The Relevant Facts August In County grand Burnet jury appellant indicted on three counts of aggravated sexual assault aof child. See 22.021(a)(l)(B)(i) (2)(B). § Tex. Penal Code & The named victim in each count was a thir teen-year-old girl, shortly B.J. In April rd before case went to trial County, District Court of Burnet the State filed written motions in asking that court J.M., all because of damage, six-year-old psychological ous girl, and another that B.J. offenses, also had to her. Calvert appellant be allowed done alleged what an witness demonstrated “ex- two-way televi that J.M. had closed circuit testified via “inappro- knowledge” and had sion, presence. The State treme sexual outside office,” girls, “if that the two in argued priately [Calvert’s] in the motions advanced males sight of had to testify presence appellant and done again to because of what forced that, defendant, although emotional Finally, would suffer serious testified Calvert her. argued very girl” The State physical strong and distress.” little and was “a girls’ circuit television testify okay” appellant’s that the closed further in probably “would testimony be under admissible would certain of that. presence, she could not be Amendment, Mary in interpreted Sixth objected to the use of closed Appellant 110 S.Ct. Craig, 497 U.S. land v. testimony on constitu- both circuit television (1990), Article 111 L.Ed.2d 666 and 38.071.1 argued grounds. He statutory tional and hearing pretrial Court held a The District deny testimony would use of such first that motions, hearing at which four on the State’s right to confront his Sixth Amendment him Fluitt, Pat B.J.’s teacher witnesses testified. argued sec- against him. He the witnesses School, testified that B.J. at Middle Burnet testimony violate of such would ond that use at a six- “learning disabilities” and read had applies [that statute] Article 38.071 “because She testified that year-old’s level. further for which the only to victim of the offense a “dreading” possibility of B.J. had been trial, of that is and the victim defendant presence appellant’s and had of years be] [thirteen] offense under [must couple about it in class. “cried a of times” age.” pointed out that B.J. was Appellant “quite fear- Fluitt also testified that B.J. not the years thirteen old and that J.M. was testify in requiring appel- her to fid” and that alleged offense for which he was victim of the presence lant’s “would be a traumatic situa- being tried. tion” for her. hearing, Dis- conclusion of the At the Raines, grandfather, Barney testi- B.J.’s fact, found, of Court as matter trict “sixty mentally percent”

fied that B.J. was both and J.M. “would be traumatized B.J. He also testified that she had retarded. testify being required to in the defendant’s appellant and had told him that “shown fear” distress and that “the emotional presence” had her. Raines testified further threatened than a minimum.” The ... would be more emotional- that he believed B.J. would suffer argu- rejected appellant’s legal court then ly required perhaps physically and to testi- explanation granted the and ments without fy appellant’s presence. testimony. circuit motions for closed State’s mother, Hayden, Crystal testified J.M.’s appellant that J.M. was afraid of but was at Shortly B.J. and J.M. testified before ready presence. in his nevertheless trial, stage guilt/innocence appellant of testified, however, Hayden that J.M. was also objections the use previous reiterated his probably “real scared” and that she would be argued, testimony and also closed circuit required appel- traumatized if time, testimony the first that use such testimony her presence, lant’s even if related impair his Fourteenth Amendment only appellant had done to B.J. to what “be- presumption innocence right to presumed be Calvert, for a child be cause Finally, men- Dr. Anita licensed [by testifying presence], in his then she harmed therapist, tal testified that had health did, in presume this offense counseling period [one must] extended been J.M. for an fact, many rejected all occur.” The District because of sexual of time and, however, appellant’s arguments, testified further assaults on her. Calvert thereafter, “wreck,” jury as shortly instructed the fol- had had she J.M. was seri- lows: nightmares, and that she had suffered television, that, presence. See speci- outside the defendant’s provides 38.071 certain

1. Article (ed.), at., circumstances, Maloney et Crimi- testimony generally F. Texas witness’ fied a child (1997). § videotape 73B.02[5][d] or closed Guide may be circuit nal Practice taken via gentlemen, going give Ladies I’m flects a preference for face-to-face confronta you at trial, an instruction this time. Our stair tion preference but that must occa provide utes sionally of children give way public considerations types these eases can be taken policy and the necessities of the case. Id. at television, we what call closed circuit Still, a defendant’s to confront going taking place is what’s here accusatory may witnesses be satisfied absent couple for the next of witnesses. So we’ll physical, face-to-face confrontation at trial seeing the witness on the closed circuit only when denial of such confrontation television, attorneys] [the will be ask- necessary to important public poli further an ing questions the witness podium from the cy reliability and the there so that [the can witness] see the otherwise assured. Id. at 3166. In particu person asking who is questions, the and so lar, “if the State makes an adequate showing procedure forth. The rest of go will necessity, protecting the state interest in according to the Code of Criminal Proce- child witnesses from the trauma of by it, dure any rate, as we are bound at a sufficiently in child abuse ease is important and only change that will be the insofar as justify to procedure the use of a special testimony is concerned. permits a child witness in such cases to two-way testify B.J. and J.M. then agаinst testified via at trial defendant jury closed circuit television. The later con- absence of face-to-face confrontation with the appellant victed aggravated of one count of requisite defendant.” Id. at 3169. The ne punishment sexual assault and cessity justify assessed his special to the use of such a imprisonment at years. for 23 procedure testimonial ain child abuse case may be shown the trial court determines appeal, appellant On reiterated the consti- procedure necessary use of the to statutory tutional and arguments discussed prevent significant emotional trauma to previously. The Third Appeals, Court of in a child by witness pres caused the defendant’s rather analysis, elaborate considered re- and requisite ence. reliability Ibid. The jected appellant’s arguments all of af- and child testimony may witness’ be assured ab firmed the judgment. District Court’s Marx sent a face-to-face State, through encounter v. 953 (Tex.App. S.W.2d 321 —Austin 1997). testimony combined effect of the witness’ grantеd appellant’s petition We (or admonishment, under oath other appro discretionary review to determine whether priate maturity, age child’s Appeals the Court of had erred. See Tex. testify truthfully), subject 66.3(b) (e). to cross-examina R.App. Proc. & tion, ability factfinder’s to observe Right The demeanor, the witness’ only even if aon Confrontation video monitor. Id. at Lively 3170. See v. We appellant’s argument turn first to un State, (Tex.Crim. 363, 968 S.W.2d 366-367 der the Sixth Amendment. That amendment State, App.1998); Hightower v. 822 S.W.2d provides, in part, relevant that “[i]n all crimi 48, (Tex.Crim.App.1991); 51 v. Gonzales nal prosecutions, enjoy the accused shall (Tex.Crim. State, 756, 760-762 right ... to be confronted with the witnesses App.1991). against him.” This to confrontation applicable was made to the states the Due Applying principles these settled Process Clause of the Fourteenth Amend bar, the case at we discern no Sixth Amend Texas, ment. Pointer v. 380 U.S. 85 ment violation in the District Court’s admis (1965). 1065, 1068, 13 S.Ct. L.Ed.2d 923 two-way sion of the closed circuit television

“The central concern of the Con of B.J. and J.M. The District reliability found, fact, frontаtion Clause is to explicitly ensure as a matter of against the evidence special procedure criminal defendant that the necessary by subjecting rigorous it to testing protect signifi both B.J. and J.M. from the adversary proceeding context of an having before cant emotional trauma of Maryland Craig, the trier of fact.” v. appellant’s physical presence, and the record evidence, previously, reasonably ‍​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌​‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌‌‌​​​‍S.Ct. Confrontation Clause re discussed rights effects on fundamental v. deleterious fact-finding.2 See Guzman supports scrutiny. judicial Courts (Tex.Crim.App. calls for close they can evaluate the 1997). best Furthermore, reliability must do the requisite based likely particular practice, of a be effects assured of the children’s reason, human principle, and common so on promising to do they after cause testified they subject experience. cross-exami truthfully, were

nation, jury to observe their was able (cita- Williams, at 1693 v. 96 S.Ct. Estelle demeanor. omitted). tions to brand practice If tends particular Presumption Innocence with an unmistakable mark the defendant argument un- next We turn innocence guilt, presumption it impairs Appellant Amendment. der the Fourteenth Amendment’s and violates Fourteenth circuit of the closed claims that admission law, process of unless guarantee of due presump- testimony impaired his television Hol essential state interest. furthers an appellant ar- Specifically, tion innocence. If, Flynn, 106 S.Ct. at 1347. brook only inference gues reasonable “[t]he hand, challenged practice need not other fact can draw from the finder of sign interpreted jurors testify to in allowing a witness court [trial] culpa particularly dangerous or is defendant manner, person on trial has is that the ble, inherently prejudicial is and does it not degree, to to such a that abused the witness deny process. not due ordinary allow witness to “reason, com principle, on and Based manner, even traumatize the witness due experience,” we discern no mon human further.” Court’s ad process violation in thе District provides, in The Amendment Fourteenth testimony of B.J. the closed circuit mission of State shall ... de- part, “[n]o relevant that testified, the J.M. Before B.J. and J.M. and life, liberty, property, prive any person of jury carefully District Court instructed process right of to without law.” due procedure that closed circuit television it process of includes within the due law by employed was authorized about trial, to a fair basic a fair trial is and of As the types “in these cases.” statute of innocence. presumption the defendant’s noted, like of that instruction Appeals Court 560, Flynn, S.Ct. v. 475 U.S. 106 Holbrook general conveyed jury to the the state’s ly 1340, (1986); 1345, 525 Estelle v. 89 L.Ed.2d intimidat children from the protect desire 1691, 1692, Williams, 96 425 U.S. S.Ct. than im environment rather ing courtroom (1976); 48 L.Ed.2d Homan necessary be procedure was plying that (Tex.Crim.App.1984). guilt. See Marx v. of the defendant’s cause presumption, implement To courts State, in the ab at 332. Even may under- must be alert to factors that instruction, an the use of a of such sence factfinding pro- mine the fairness procedure television “would closed circuit of criminal cess. In the administration suggesting jury be viewed probably carefully guard justice, against courts must testifying in was fearful of that the witness guilt to be principle dilution of rather fearful of setting the courtroom be- probative evidence and established looking at the defendant.” testifying while yond doubt. a reasonable Israel, J. Criminal Procedure LaFave & W. nd ed.1992). (2 Thus, we do § 24.3 at 1015 particular prac- of impact actual likely the closed use of cannot al- not think it judgment jurors of tice on the procedure had a subcon fully But this Court circuit television ways be determined. jury’s attitude toward effect probability of scious no that the

has left doubt say clearly its abused that the District Court’s fact-find- not the District 2. We concede that sig- weakly supported by finding ing respect that J.M. would suffer to J.M. is discretion evidence, say required but we cannot the record if trauma nificant emotional fact-finding actually the zone of rea- outside presence. appellant's words, disagreement. we can- In other sonable words, appеllant. is, article, In other we do not believe That literally, read does not challenged practice apply that the tended to brand of a witness circum- one, appellant with guilt. specified an unmistakable mark of stances not in section nor does article, literally, prohibit read the use of special procedures testimonial in circum- Article 38.071 specified stances not in section one. Would finally appellant’s argument We turn it, then, consequences lead to absurd that the before, under Article 38.071.3 As we noted legislators possibly could have if intended appellant argues that the admission of the give we were plain effect to of meaning closed circuit television B.J. the statute? do so. We not believe That J.M. violated Article 38.071 because that stat- this statute does not all cover the circum- special procedures ute authorizes testimonial might stances that have covered cannot only for who years age victims are twelve reasonably be deemed an absurd result thаt or younger. years B.J. thirteen old legislators possibly could not have in- time the offense and at the time Indeed, quite possible tended. it is trial, J.M., old, although only years six legislators intent of the who voted Article was not the victim of the offense for which 38.071 simply enact a narrow statute appellant was on trial. prosecution would both facilitate the 38.071, 1,§ provides, Article in relevant certain serious child abuse eases and survive part: an challenge. inevitable Confrontation Clause only This applies proceeding article to a likely legislators We also think it that those prosecution specified [certain sex they would have made their intent clear offenses, including aggra- assaultive actually prohibit, except intended under vated sexual assault child] the of- circumstances, the enumerated special testi- alleged fense is to have been committed that, monial procedures like one used against years 12 age younger child case, short, are constitutional. In we and trial court finds that сhild is agree concurring opinion Judge with the testify unavailable to at the trial Benavides, of the joined by Judges Campbell and offense, only applies and to the Overstreet, statements State, in Gonzales v. 818 S.W.2d or testimony child. 756: If legislature clearly

We must statutory determine whether that had elsewhere expressed language prohibits policy the use of closed circuit that no courtroom testi- mony television except not should be allowed circumstances physical presence defendant, enumerated in the statute. of the might be inclined think that Article interpret statutes, When we we specific 38.071 was meant a list of ex- necessarily our focus attention on the literal But, ceptions general to that rule. in this text of the question. Boykin statute in instance, general only is expressed rule State, 782, 818 (Tex.Crim.App. 785 Constitution, in the the legislature and has 1991). meaning text, If the statutory of the authority exceptions. no to make It fol- when read using the established canons of seriously lows that Article 38.071 cannot text, relating construction to such should legislature attempt taken as an plain legislators have been who voted to prohibit the use closed-circuit televi- it, give plain meaning, we effect to that [testimony] sion except under the enumer- doing unless so would lead absurd conse case, ated circumstances. If that were the quences that legislators possi could not might expected say one it have so ex- bly have intended. Ibid. plicitly, exceptions rather list And, Section one of Article against policy. 38.071 states an unarticulated al- applies “only” that the article though might actually to the state Article 38.071 have Constitution, ments or of a witness certain been intended to limit the circumstances, one, specified clearly in section exist. cannot be effective to such end. one, supra. See

3. footnote the Confrontation pellant’s rights under only permissible inter- Consequently, statute, Sixth Amendment. Clause matter how of the no pretation counterintuitive, prescribes spe- is that it on three counts was indicted Appellant un- proсedure cific testimonial alternative tri- of B.J. Before aggravated sexual assault circumstances, leaving der certain defined asking al, motion filed a written the State develop proce- free to different the courts testify via J.M. be allowed to B.J. and circumstances, con- other dures under The State television. two-way closed-circuit only prohibi- constitutional strained girls, “if the two argued in the motions that tions. sight of presence and in the forced Id, hold, therefore, Article defendant, We emotional would suffer serious prohibit not the admission argued, 38.071 did distress.” State physical and testimony of B.J. and alia, closed circuit television televi- girls’ closed-circuit inter J.M. Mary- testimony was admissible under sion 3157, S.Ct. Craig, 497 U.S. land v. judgment the Court of affirm the We (1990). The District Court L.Ed.2d 666 Appeals. hearing motion. pretrial on the State’s held a testimony, court hearing the district KELLER, After J., opinion. dissenting filed a fact, found, that both B.J and as a matter of HOLLAND, J., concurring filed a and re- by being “would be traumatized dissenting opinion, which WOMACK presence” quired to defendant’s JOHNSON, JJ., joined. ... emotiоnal distress that “the a minimum.” more than HOLLAND, J., concurring filed a opinion in which WOMACK and dissenting evidence majority holds the record JOHNSON, J.J., joined. supports” trial court’s deci “reasonably footnote, majority concedes majority In a agree with the that Article sion. fact-finding with re the district court’s of Criminal Procedure is 38.071 of Code supported by the authority “weakly permitting spect to J.M. exclusive trial refuses find the evidence” but use of closed-circuit television for testi record finding discretion mony court “abused its of a child in Texas. See Gonzales v. significant trau emotional (Tex.Crim.App. J.M. would suffer

1991) testify pres analysis required appellant’s in ma if to (adopting Supreme Court’s 836, 110 was not “outside Craig, because its decision Maryland in v. 497 U.S. S.Ct. ence” (1990) disagreement.” as zone of reasonable 111 L.Ed.2d 666 basis for Marx, According to this Court’s determining state con n. whether a defendant’s Guzman, def almost total rights to recent decision stitutional confrontation have been given the trial to court’s by closed-circuit tes erence must violated child-witness State’s motion timony). agree majority because the I also with the determination testimony of concerns B.J., thirteen-year-old J.M. child closed-circuit permitting on victim, that turn questions of law and fact testify via television mixed credibility demeanor. an permissible the Confrontation evaluation was under (Tex. State, 85, 89 955 and the v. S.W.2d of the Amendment Due Guzman Clause Sixth Crim.App.1997). Viewingthe evidence in Fourteenth Process Clause of the Amend rul light favorable the trial court’s Maryland Craig, supra. v. I most ment. See however, evidence indicates majority, ing, I believe the record agree cannot significant not suffer further district court’s that J.M. would supports that the evidence testify in J.M., required if six-year-old trauma wit emotional permit decision regarding her observa ness, presence television. via closed-circuit (Tex.Crim. ma Because the State, appellant and B.J. Lively tions v. State, give complete jority fails to account

App.1998); Hightower v. hearing, pre-trial testimony at the presented (Tex.Crim.App.1991);Gonzales testimony relevant is ‍​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌​‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌‌‌​​​‍nec J.M. to testi recitation supra. permitting would hold I essary. ap violated fy exceptional procedure via this

The State’s evidence regarding J.M. was appellant, between her and but to the inci- mother, on Crys- based of her dents she appellant witnessed between Hayden, tal and Dr. Anita Though Calvert. Hayden B.J. Once realized that J.M. would the testimony of J.M.’s mother on direct testifying not be appellant’s presence re- examination the State garding her, established that Hayden what he had done to suffered emotional harm due to previous had retracted her and indicat- prior allegedly sexual offenses committed ready ed that J.M. “was for that.” him, appellant frightened Hayden and was Q. you Do talking understand we’re testifying did open not indicate that court just about case that would cause J.M. additional emotional trau- in, she’s a witness not in the ease in ma. which she allegedly abused in? Q. you Has any she shown fear or trau- youDo understand that? ma— A. Yes. A. Yes. Q. Okay. you And understand all she’s Q. —concerning testifying? her going to be asked to to in this

A. Some. proceeding allegеdly is what she saw through some window? Q. you? What has she shown to Okay. A. him, Being A. Jeffrey scared Marx. ready But she’s for it. She said she Q. Okay. You understand the difference

wanted come. now? Now, Q. Okay. you do feel like she Okay. Well, A. that does make a differ- your testifies —Based conversations ence. your her, with her and knowledge of Well, Q. sure. All going she’s to be you do feel like she open testifies in to testify asked to is she— what you’re court in the same seat Okay. A. So isn’t this her case? sitting presence sight and in Q. No. Marx, Jeffrey Steven the defendant in case, any would cause undue Okay. A. physical psychological or emotional Q. It’s Bebe’s ease. distress her? Well, Okay. okay A. that she’s with. A. It better if she mean, ready she’s for that. him, presence same I think ... mean, Q. what she saw hasn’t caused Q. you explain Would Court the her kind of emotional distress or symptoms you have indicated or problems, allegedly what she saw you have express seen her about through a window? Jeffrey and testifying Marx her in mean, just prob- A. No. She she could —I court? ably it. do nightmares. A. She has sleep She don’t testified, Hayden response further in go in her bed.... She’s scared to court, questioning trial the emo- the bathroom and she wets the bed. tional trauma had suffered occurred She’s real scared. prior knowing to J.M. that she be would Q. youDo feel this like would cause more testifying against appellant. She not tes- did emotional— tify that J.M. suffered emotional trauma be- Yes, A. I do. cause she testifying feared as a witness in Q. psychological —and trauma if she tes- this case. presence tifies in the Jeffrey? THE COURT: ... being Prior her Yes, A. I do. case, as called a witness in this did questioning, Hayden After this line of was any prob- she have of those kind of on made aware cross-examination that nightmares, wetting J.M.’s lems like (cid:127)testimony bed, not relate would incidents so forth? trau- cause J.M. further emotional you rephrase would not Could

THE WITNESS: ma. question, please? your know that you COURT: You feel like there THE Do THE COURT: aas wit- daughter physical has been called any be emotional or would ness? in confron- if she were to be trauma in the or- the defendant tation with Yes, do. I THE WITNESS: in the courtroоm dinary involvement she called to Before THE COURT: trial? case, did she witness in be a night- those kind of if she had have You mean THE WITNESS: is she with him or mares? and interact go - just Yes. THE WITNESS: then? caused those THE COURT: had to sit there and What If she THE COURT: stand. testify from the witness I don’t know. THE WITNESS: telling you’re sure, me but say THE So what can’t COURT: THE WITNESS: nightmares hap- had all says then she’s to tell what she wants she happened? along, very strong girl, even before this little pened, she’s strong-willed child like that. we found out it Before THE WITNESS: hap- it could have happened because you think she would Do THE COURT: ago. long time pened physical or any emotional suffer confron- a result of that problems as though J.M. had Dr. testified Calvert tation? emotional trauma due in fact suffered did not appellant, she prior it, incidents guarantee I couldn’t THE WITNESS: testifying appellant’s presence believe occasionally there’s but think — damage. would result further story. their to tell child who wants Doctor, Q. you like if she ... do feel my question. Listen THE COURT: presence in the open court testifies Okay. THE WITNESS: Marx, Jeffrey she Steven you that there Do think THE COURT: further result would cause will—the physical any emotional would dis- physical emotional serious confronting her problems with —tes- has than what she now? tress stand and tifying that witness from know, her, you ugly A. one If no having her uncle? to confront really badly about it —I her feel made Honor, I couldn’t Your THE WITNESS: a talker than Jennifer is more of think not be. say that there would for sure probably come most. She will it. expect I wouldn’t do it. course, do that

Q. can make her Of we Calvert ex- Dr. On redirect know, you my is what but concern well having to plained not physical be the emotional would but on J.M. did be easier present would cause—that distress that would her. so traumatize to do would indicate her resulting from Calvert, to be able were Q. [J.M.] Dr. presence of another. court in the open physical story her but not to tell Jeffrey? of presence A. the In defendant], via closed of presence [the Yes, Q. ma'am. television, you like there do feel circuit trauma, you be could or to. So unless be less she wants would A. tells me She for her to less I of trauma frightened then ex- assured more gets mоre she she than story in that manner probably her girl would tell that little pect, in the same to face if had okay. she testify would defendant]? [the courtroom court, Dr. by the trial questioned When she tell it better if probably She that A. opinion tes- prior her Calvert reiterated him, look of course. have to didn’t charged the offense tifying witness to as a year-old victim, J.M., six-year-old child a alleged child Appellant witness. Q. you youDo feel like she would suffer — procedure Texas Code of Criminal violated ago you while said weren’t sure. 38.071, Procedure, Article the Confrontation youDo feel like there would be a less Amendment, Clause of the Sixth and the Due you of chance her —or would more Process Clause of Amend- the Fourteenth any assured that she would not suffer affirms, majority finding ment. The physical serious or emotional dis- or statute is not the for exclusive authorization tress she testifies via closed circuit procedure the closed-circuit there presence television not in the or no violation the United States Constitu- sight the of [the dеfendant]? agree tion. I majority’s with the assessment Obviously A. there would less risk if preclude Article 38.071 does not the going any there was to be trauma to procedure employed present case but I her, yes. so for do reasons different from those articu- viewing In the light evidence in the most opinion. agree lated the lead IAnd with ruling, favorable to the district court’s I can- majority using pro- agree majority not with the that the record constitutionally cedure permissible was for “reasonably supports” evidence the district testimony. disagree majori- B.J.’s I court’s determination that the closed-circuit however, ty, regarding testimony of J.M. necessary procedure protect J.M. procedure Use the closed-circuit her for from holding further emotional trauma. In testimony violated the Confrontation Clause.

the trial court’s decision was not outside disagreement, majori- zone of reasonable I. ARTICLE 38.071 ty ignores Hayden’s subsequent clarification only applies Article 38.071 daughter that her would suffer further trau- years age youn- of child victims or twelve only testify ma in appellant’s forced ger: presence appellant what did to regarding only proceeding This applies article to a her, not she what observed him do to B.J. prosecution of an offense defined reasonably sepa- This clarification cannot be any following sections the Penal Also, Hayden’s prior testimony. rated from Code if is alleged the offense to have been majority relies on Dr. Calvert’s against years age committed child 12 regarding extent of emotional trauma or younger.... J.M. has of appellant’s suffered as result inserted). Hence, § (ellipsis Article 38.071 evidence, however, abuse. This does not the statute authorize the could not use of special procedure show that use of this proceedings closed-circuit televised for either necessary protect J.M. from further B.J. J.M. because older B.J. was emotional trauma mandated Su- twelve and J.M. was not the victim. preme Craig. in Maryland Court v. question present case is wheth I Because find the trial court’s decision er Article 38.071 constitutes the exclusive allow J.M. via closed-circuit televi- procedure using closed-circuit televised discretion, respectfully sion was an abuse of does, testimony. If it then the closed-circuit Instead, dissent. would hold trial court procedure for both B.J. and J.M. was im violated to confrontation un- proper as a matter of state law because der the permitting Sixth Amendment in requirements of the statute were met. via closed-circuit television. starting point question of statuto ry construction is the text of statute KELLER, J., dissenting delivered a unambig itself. When statute clear and

opinion. uous, apply plain meaning we its Appellant sought review of the Boykin words.

Appeals holdings affirming the trial court’s & 786 (Tex.Crim.App.1991). 785-786 n. 4 televising, via equipment, only closed-circuit of the examine extratextual factors We when the girls B.J., ambiguous testimonies two thirteen- words of the statute are or the —

587 Hence, ex- an examination of meaning to absurd re absurd result. plain the would lead required. is tratextual sources determining meaning, plain In sults. Id. phrases and shall be read context “[w]оrds guidance given some Legislature has The according construed rules ‍​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌​‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌‌‌​​​‍and may we examine in constru- as to factors usage.” TEX. GOV’T CODE grammar and consider, among may ing the statute. We 311.011(a); State, § Dowthitt v. 931 S.W.2d matters, the other addition, 244, (Tex.Crim.App.1996). In 258 attained; (1) object sought to be is in presume

we that "the entire statute (2) which statute under circumstances effective.” TEX. GOV’TCODE tended to be enacted; Dowthitt, 311.021(2); § 931 258. S.W.2d at (3) legislative history; “Every in a used for word statute has been (4) statutory provi- or former common law word, clause, phrase, and each purpose and sions, the same or including laws on reasonably given sentence should be effect subjects; similar 258; Dowthitt, 931 possible.” S.W.2d at (5) particular construc- consequences of State, (Tex. 715, Morter 551 718 v. S.W.2d tion; quoting Crim.App.1977), Eddins-Walcher (6) of the construction stat- administrative 587, Calvert, 591, 156 298 Butane Co. v. Tex. ute; and (1957). 93, S.W.2d 96 (7) emergen- and (caption), preamble, title literally, simply cy provision. Read the statute does apply when child is older twelve Gov’t.Code, 311.023; State, § v. Tex. Ramos victim, therefore,

not the statute 358, (Tex.Crim.App.1996).1 934 S.W.2d 364 ability procure cannot limit the State’s history and the circum- legislative by majority persons. such which the statute was enacted stances under statutory challenge by holding resolves the interpretation. its Arti- reveal some clues to exactly apply that: that the statute does not 1983,long passed cle 38.071 before to non-victims or to older than children Supreme Court’s decision advent However, appears twelve. it to me that the 836, Craig, 110 Maryland 497 U.S. S.Ct. v. plain language of the statute would lead (1990). Hence, 3157, 111 L.Ed.2d 666 pow- absurd results. If trial courts have the not, statute, through the at- Legislature did provide a procedure apart er to Supreme tempt codify precedent Court from the statute and are not bound precedent yet Legisla- existed.2 The no such requirements, portion statute’s then that was, however, concerned about Con- ture state; impact the statute has no in this noth- Floor, Clause. On Senate frontation ing change provi- if the closed-circuit Parmer, bill, sponsor stat- Senator however, Showing, sion exist. did not “vеry narrowly proposed law ed plain meaning of a ab- statute leads to limits for the introduc- draws the lines and inquiry. not end Ex- surd results does testimony to sure that we tion of such make may provisions tratextual sources show the result constitutional don’t offend the absurd, all, or Legisla- is not after Sen- confrontation cross-examination.” 17, Floor, 836, May 1983.3 This meaning despite the SB plain ture intended the ate 302, Lynaugh, 109 S.Ct. part Penry 492 U.S. provision This of the "Code Construc fled v. 1. 2934, (1989). Act,” applies to 106 L.Ed.2d 256 tion which the Code Criminal Procedure, been at least to extent has subsequent 1987, the 60th or amended or reenacted scope of offenses was narrowed 3.In 311.002(2); offenses, legislature. § Tex. Gov’t Code Ra specified list of offense to a from mos, 364, State, 8; n. Postell 934 S.W.2d v. requirement that the child “unavail- 462, (Tex.Crim.App.1985); 693 Bar 464 revi- was added. A number of substantial able” 78, (Tex.Crim.App.1968), 82 bee portions of the were also in other statute sions denied, addition, U.S. S.Ct. rt. the 1987 law contained made. In ce (1969). statement, stronger L.Ed.2d lan- "purpose” even concerning guage the intent to conform But, purpose codify state- example Legislature Confrontation Clause. An in which the did little, any, weight the issue at Supreme precedent Code of Crim- ment carries Texas Procedure, 2(e), changes in because the the statute do not § codi- inal Article 37.071 which hand interpreted statement could be supporting testimony as cuit is court” not “out of testimo- appellant’s position, legislative but other ny, such explain but a belief would the inclu- statements and circumstances undercut such sion of the provision closed-circuit interpretation. an Or, may Legislature origi- statute. the have nally hearsay drafted the to create a statute The statute was also enacted before the just exception videotaped testimony, for later Evidence, adoption the of of Rules Criminal adding on the testimony provi- closed-circuit adopted which were in 1985 and made effec- contemplating sion without the difference in tive in During public hearings 1986. at the types testimony. nature of the two of Senate Committee Jurisprudence, Steve Chaney, then chief of the trial section at the history, What is legislative clear from the County Attorney’s Office, Tarrant District dispositive and what is to me of this aspect testified the proposed bill would render the problem, Legislature is that the intended videotape admissible at trial evidence that (rather restrict) to expand the admissi- grand juries already were permitted to see. bility passing evidence Article 38.071. Transcript, Senate Jurispru- Committee on Therefore, if courts otherwise have the dence, 836, 19, 1983, April p. SB He stated power procedures, to authorize closed-circuit that the evidence not admissible at trial intend, the Legislature not in passing did hearsay. because it Transcript, p. 8. On 38.071, Article power. limit that Floor, the Senate passage, before final Sena- becomes, question do then have courts was, testimony tor Parmer echoed that the statute, power, apart from to authorize time, grand jury “available to the but not televised, use proce Floor, jury.” available to the triаl Senate SB yes. dures. The recog answer We have 836, 17, bill, May 1983. The and later the nized that power courts have inherent enacted, statute as contained provisions re- everyday over “the justice.” administration of garding admissibility of prerecorded (Tex.Crim.App.1996), 922, Matckett v. videotaped testimony provisions as well as 1107, denied, 521 t. U.S. testimony live cer televised via closed circuit 2487, Moreover, 117 S.Ct. 138 L.Ed.2d 994. equipment. Senator Parmer referred to Legislature has directed the courts types “videotaped” both as testi- proceedings justice “control so that is done.” mony and made attempt no other to distin- 21.001(b). Hence, § Tex. Gov’t Code absent Floor, guish May the two. Senate SB statute, provision, constitutional or rule 17, 1983. At the time Article 38.071 was contrary, power the trial court has the enacted, originally hearsay was a common- procedural control the aspects of a case. rule, precise law contours of which were procedural One of those aspects is the man uncertain. See 24 Tex. Jur.2d Evidence ner in which witnesses required will be §§ 557 and 561. testify. Therefore Article 38.071 does What can be from divined the circum- procedures bar employed in the present legislative history stances and is that ease. Legislature was apparently attempting to hearsay create exceptions pass that would II. CONFRONTATION muster under the Confrontation Clause with- guidance concerning out real scope provides, The Sixth Amendment in rele- hearsay rule or of the part, prosecutions, Confrontation vant all criminal “[i]n Legislature may Clause. enjoy right have believed accused shall ... hearsay rule would bar live against closed- confronted with the witnesses him.”

circuit well prerecorded as This applica- confrontation was made videotaped testimony. Such a belief would ble to the states Due Process Clause have been erroneous because live closed-cir- of the Fourteenth Amendment. Pointer session, appear question legislative be material to of whether and a construction an act through the statute is the exclusive method legislature uniformly another held to be enti- procedures may which closed-circuit be conduct- Schroeter, weight.” parte tled little Ex legislature

ed. "[0]ne session of the does not 1997). (Tex.Crim.App. power past have the to declare the intent of a

589 1065, U.S. 400, Craig, confrontation. 497 Texas, 13 a face-to-face 380 U.S. 85 S.Ct. 856, 110 (1965). S.Ct. 3157. at 923 “The central concern

L.Ed.2d the is to ensure Confrontation Clause the the Supreme Court did “not decide The reliability against a criminal of the evidence for showing of emotional trauma” minimum by rigorous testing to subjecting it defendant televised, procedure. using a adversary proceeding context of an in the held that “mere ner- simply The Court Id. Craig, at a trier of fact.” 497 U.S. before (a testify” or some reluctance to vousness 845, 110 S.Ct. 3157. Confrontation the showing) minimis fell below mere due preference reflects a for face-to-face Clause that “serious emotion- showing minimum trial, preference at but confrontation reason- such that the child ‍​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌​‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌‌‌​​​‍cannot al distress way tо occasionally give considerations must clearly ably met constitutional communicate” public policy and the necessities of Id.; v. requirements. see also Gonzales 849, Craig, at 110 S.Ct. 3157. In case. Id. 756, State, n. 10 818 762 S.W.2d recognized state Supreme Court that the (Tex.Crim.App.l991)(acknowledging that protecting psychologi- interest in had an willing Court not to decide Supreme “was well-being of child abuse victims which cal de meet this ‘more than would suffice to what case, may, justify proper de- interest ”). question left minimis standard’ 853, Id. at nying face-to-face confrontation. is, Is open how harm must be shown? much 3157. 110 S.Ct. of emotional distress the minimum threshold just barely exceeds “mere nervous- one presented The Confrontation Clause issue testify?” to Or is some- ness or reluctance (1) parts: case two level of has what thing required? I is re- more believe more the State that a emotional harm must show quired. “That the face-to-face confrontation to justify depriving suffer in order child will not, of is requirement not absolute does right to a defendant of his a face-tо-face course, may easily dispensed mean (2) confrontation, there evi- is sufficient Therefore, at hold Id. I would with.” support in the record to a conclusion dence that, pass muster under Confrontation child level requisite would suffer Clause, the show that the child State must of emotional harm? a more trauma than witness suffer serious, ordi- victim of a violent crime would Degree required A. of emotional harm narily facing perpetrator feel when Any permit other standard would court. required The level emotional harm Con- requirements to avoid the State justify dispensing with face-to-face confronta course. Clause as a matter of frontation question law. I tion is so conclude special more often need child victims While appreci because the trial court “is in an denying face-to-face confrontation protection, issue,” ably position better to decide the Guz exception should still rather State, 85, v. 955 89 man S.W.2d rule.4 v. (Tex.Crim.App.1997)(quoting Villarreal (McCormick, 134, 139 935 S.W.2d P.J. Degree shown B. of emotional harm concurring)), an issue and because this is Next, is inquiry: the second application important, turn to uniformity of where (Keller, Villarreal, requi- J. there sufficient evidence show see Moreover, obviously concurring). degree of harm? This issue is Supreme site requires “almost total indicating question of law fact cast the issue as one findings. court’s See authority to decide the level of the trial it had the deference” Guzman, justify avoiding Giving at 89. almost required emotional trauma Thomas, Scalia, charge, joined by the more defendant Justice has hensible 4. Justice recently Craig exception constitutionally guaranteed pro- cautioned that the need of all “is a narrow one”: face-to-face confrontation tection his defense. dangerous Kentucky, - U.S. -, business water down the It is 119 S.Ct. Danner dramatically merely (1998)(Scalia, be- dissenting so confrontation J. 142 L.Ed.2d charged society particu- certiorari). cause crime finds grant refusal from Indeed, reprehensible. repre- larly the more fact, viewing total deference means questioning evidence such link. vided In from light in the record “in the most favorable to the trial symp- court established that these ruling.” trial court’s Id. now examine toms occurred even the crime before the record to determine whether the evi- prior discovered and well to the time that justify dence was sufficient to avoiding face- was testify- J.M. informed that she would be to-face of ing. confrontation B.J. and J.M. Dr. Anita Calvert also testified that damage J.M. suffered serious emotional as a testimony

1. B.J.’s result the crime. She further testified wreck,” that J.M. “a prob- was that she had Employing procedures for trusting lems with people, and that she en- B.J. does not violate the Confrontation gaged sexually inappropriate in behavior. Clause. The record that shows B.J. had testified, however, Dr. Calvert never any learning six-year- disabilities and read at a symptoms of these to were linked J.M.’s old’s level. The record also shows that B.J. rather, anticipated testifying; Dr. Calvert very testifying appel- fearful before specifically testified symptoms that the were lant, testimony and that such would be trau- attributable assaults committed fact, for matic her. In a teacher testified against J.M. may that “when it’s she mentioned [B.J.] face, [appellant] have to face him face to she J.M.’s also J.M. mother testified that (bracketed keeps saying can’t’” T material appellant scared of but wanted to inserted). testimony showed B.J. court: possibility facing cried about the appellant, Q. you? What has she shown and there might was even evidence that B.J. him, A. Being Jeffrey scared of Marx. physically suffer if she testified. evi- Given ready But she’s for She she it. said want- of B. functioning dence J.’s low intellectual ed to come. age, high her level of fear she showed facing about appellant, testimony other suffer, agree about harm she would Q. said, telling And not me what she but Appeals’ holding with the Court of upon you, based what she has said to does trial court was within its con- discretion in any sign she being show afraid when she ducting special procedure for her testi- talks about what she saw? mony. supports a finding record A. Some. testifying would cаuse B.J. suffer more Both J.M.’s mother and Dr. Calvert were ordinarily trauma would be suffered questioned concerning the emotional harm serious, victim a violent crime when by testifying appel- would be caused

facing the perpetrator in court. presence. lant’s J.M.’s mother affirmed that J.M. would suffer “some harm” if she testi- 2. J.M.’s appellant’s presence fied in because “she’s But J.M.’s is another matter scared of him.” The mother further assent- entirely. concerning The State’s evidence appellant’s presence ed that (1) primarily J.M. falls categories: four psychologi- “would cause more emotional and emotional harm has J.M. suffered as a result cross-examination, During cal trauma.” crime, (2) (3) appellant, J.M.’s fear of however, testify- J.M.’s mother indicated that testified, the harm suffer she would witness, victim, ing as a mere instead of as (4) evidence that it would better if pose much less problem: J.M. testified via the closed-circuit method. Q. you going And understand all she’s night- J.M.’s mother testified that J.M. had proceeding be asked to sleep mares and cоuld not in her bed. Fur- allegedly what through she saw win- some ther, mother testified J.M was dow? go scared to the bathroom and she her wet Okay. A. Although attempted, through bed. State questioning, Q. its link Okay. these effects You understand the difference testimony, upcoming pro- witness never now? interact go mean if she had Well, A. You a differ- Okay. that does make

A. just— if she him or

ence. testify from there and Q. had to sit If she Well, going to be sure. All she’s

Q. stand. the witness testify to is what she—

asked to sure, says she she say for but I can’t case? A. Okay. So this isn’t her

A. she’s a happened, and to tell what wants Q. No. child strong-willed strong girl, little very Okay. A. like that. Q. case. It’s [B.J.’s] suffer Q. you think she would Do Well, okay with. Okay. that she’s A. result problems as a physical or emotional mean, ready she’s for that. of that confrontation? hasn’t caused Q. I mean what she saw it, but I think— guarantee couldn’t A. prob- or any her kind of emotional distress occasionally a child who wants there’s through a allegedly saw lems what she story. tell their window? Q. my question. Listen mean, just prob- she could A. No. She —I Okay. A. ably do it. any you that there would be Q. Do think redirect, that J.M.’s J.M.’s mother stated On with her physical problems еmotional or presence would testifying appellant’s in confronting testifying from that witness — “[s]he traumatize her because “probably” [appellant]? having to confront stand and year.” man in almost a hasn’t seen the say for sure I couldn’t A. Your Honor. could Dr. Calvert stated that J.M. expect be. I wouldn’t there would not that difficulty: presence with little appellant’s in it. Doctor, Q. you do feel like if she testifies testimony from J.M.’s Finally, there was Jeffrey open presence in the of court be that it would and Dr. Calvert mother Marx, result Steven that she will—the appellant’s if J.M. did not “better” serious emotional and would cause further fol- testified in the J.M.’s mother presence. now. physical than what she has distress lowing exchange: know, her, you ugly one A. If no was Now, you like if she testifies— Q. do feel badly really feel about it —I made her your with her on conversations Based think is more of a talker than most. [J.M.] her, you do feel like your knowledge of do it. probably She will come on and seat court in the same open testifies in she course, Q. can make her do thаt as Of we and in sitting, presence in the you’re know, my you but concern what well Marx, Jeffrey the de- sight Steven physical dis- would be the emotional case, any un- would cause in this fendant would be re- tress that would cause—that emotional psychological or physical or due testifying open court in sulting from her to her? distress presence of another. not in if she was be better A. It would Jeffrey? presence A. In the him, I think. presence the same Yes, Q. ma'am. might be opined that also Dr. Calvert to. So unless A. She tells me she wants if J.M. testified outside “better” frightened expect, than I gets more she presence: testify okay. girl probably little would Calvert, to tell were able Q: [J.M.] Dr. position in the maintained this Dr. Calvert presence physical in the story but not her trial court: questioning face Marx, via closed-circuit Jeffrey Steven television, be you there would do feel like any there would be Q. you Do feel like trauma, you be more assured or could less if she were to physical or trauma emotional story in her to tell her trauma for of less the defendant in confrontation with be if she had than she would manner ordinary courtroom involvement Jeffrey Marx? the same courtroom face in trial? (2) (3), probably

A. She categories would tell it better if she That leaves the vic- him, didn’t have to look of course. tim’s fear the accused and evidence that

testifying presence in the accused’s would (2) Q. you Category you Do feel like she cause emotional harm. is cir- would suffer — you ago said a while weren’t sure. Do support cumstantial evidence to emotional you feel like there would be less chance (3) testifying category harm from while you of her —or be more assured that direct evidence. fitting None evidence any she would not or suffer serious emo- categories present these two case rises physical tional distress if she testifies most, requisite At degree of harm. via closed circuit television and not in the proved through State the mother’s testi- presence sight Jeffrey or the Marx? mony probably that J.M. would suffer some Obviously A. there less would be risk if psychological appel- harm if she testified in her, going there trauma to But, lant’s presence. significance yes. seriously J.M.’s mother’s un- Having categories viewed the four of evi- dercut after she realized J.M. would not conclude, presented dence Moreover, own her case. light even in the most favorable the trial replete undisputed the record is evi- ruling, court’s evidence insuffi- dence, from both mother from J.M.’s Dr. support finding cient requisite a of the Calvert, testify J.M. wanted and was degree of justify harm would abrogating ready appellant’s presence. the accused’s to face-to-face confronta- And, clearly consistently Dr. Calvert tes- (1), Category tion. the harm caused tified that serious emotional harm from face- crime, only tangentially related to the in- unlikely. to-face quiry may at hand. That victim have emotional as a suffered serious harm result circumstances, Under these even consider- does prove of the crime victim ing together light all of the evidence in the will suffer additional serious emotional ruling, most favorable to trial court’s ordinarily greater than that suffered harm — support record does not a conclusion ‍​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌​‌​‌‌​​‌​‌​​‌​​‌‌​​​‌‌‌‌​​​‍that serious, by a victim of a violent crime—from J.M. would suffer more trauma than a victim testifying perpetrator’s presence. At serious, ordinarily violent crime would most, might provide background it in which facing perpetrator feel when court. directly assess other evidence relevant to Henee, would court find that trial vio- If issue. evidence emotional trauma appellant’s right lated of confrontation under resulting from the offense were sufficient to permitted when it Sixth Amendment testimony, authorize closed-circuit such via closed-circuit television. routinely justified. would be would reverse the decision of (4), Category that would be Appeals and remand the cause to that “better” for if the victim she testified via analysis. court to harm conduct a television, little, provides closed-circuit showing support requisite degree for a might harm. That the victim be “better emotionally

off” or could better relate her

story by testifying does not show that face-

to-face she an would suffer emotional harm

greater ordinarily than that suffered serious,

victim of a violent crime testified,

face-to-face. As Dr. Calvert obvi-

ously, there would less risk of trauma But, testimony. again,

from closed-circuit

we were to hold that that fact authorized testimony, procedure virtually every

be authorized in case.

Case Details

Case Name: Marx v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 3, 1999

Citation: 987 S.W.2d 577

Docket Number: 994-97

Court Abbreviation: Tex. Crim. App.